Kristina Cooper believes her employment with Indiana University Health Arnett was terminated because she made a complaint to the U.S. Department of Labor about a wage and hour issue. A bench trial was held before this Court on April 21-22, 2014. For the reasons stated below, judgment is in favor of IU Health and against Cooper.

The following are the Court's findings of fact and conclusions of law pursuant to Federal Rule of Civil Procedure 52(a). To the extent certain findings of fact may be deemed to be conclusions of law, they shall also be considered the Court's conclusions of law. Similarly, to the extent matters contained in the conclusions of law may be deemed findings of fact, they shall also be considered the Court's factual findings.

FINDINGS OF FACT

Cooper brought this suit against IU Health for their alleged firing of her in retaliation for making a complaint to the Department of Labor about a wage and hour issue.[1] The Fair Labor Standards Act prohibits employers from discharging "any employee because such employee has filed any complaint" about the employer's failure to properly pay overtime wages. 29 U.S.C. § 215(a)(3).

IU Health Arnett operates a hospital in Lafayette, Indiana. The hospital was opened in 2008, and is therefore relatively new. As with most hospitals, IU Health Arnett has a full time pharmacy within the confines of the hospital. The pharmacy serves as the source of all drugs distributed to patients of the hospital. Shortly after the hospital opened, Edward Leung was appointed director of the pharmacy. When Leung arrived at the hospital, the pharmacy was woefully understaffed. Pharmacist positions were only 40% staffed and the pharmacy was not performing particularly well. The operations of the pharmacy were inefficient, drugs were not being dispensed in a timely way and delivery times were not optimal.

Kristina Cooper was hired by IU Arnett as a pharmacy technician in March 2009. Cooper was licensed by the State of Indiana and took the job at IU Health because it paid more money than her prior job working at a pharmacy in Brownsburg, Indiana. Cooper went through a training program at IU Health and during that time she worked all shifts. But once her training was over, she was assigned to the night shift. Generally the night shift ran from 7:00 pm through 5:00 am the following day. The shifts were scheduled seven days on, seven days off. Cooper reported to Tony Hansen, the supervisor of pharmacy techs. But because Cooper worked the night shift, and she was the only tech on duty during that time, she took her day-to-day direction from the pharmacist on staff during the night shift, Suree Lee.

IU Health uses a computerized time and attendance program called Kronos. Pharmacy techs like Cooper were all hourly employees. They were required to log into the Kronos system upon arrival to work and to log out when they left. When Cooper first started working at IU Health in March 2009 the Kronos system would automatically deduct ½ hour for lunch. So employees were expected to take their lunch break and the computer would automatically deduct the time. If an employee had to work through lunch, then the Kronos system required someone to manually change the report to show "no lunch" and this would thus trigger overtime compensation. When Cooper first started at IU Health, the techs were allowed to enter the "no lunch" code themselves. But in April 2009, IU Health changed the policy. (Pltf. Ex. 2). Because management perceived that too much money was being spent on overtime, the policy was changed so that only a supervisor could enter "no lunch" into the system.

A meeting was held in the pharmacy to announce the change in policy. Cooper says that she raised a concern at the meeting about having to work through her lunch hour and not getting paid for it. Neither Leung nor Hansen had any recollection of this, and I find them to be more credible than Cooper on this point. Cooper claims that there were ten other people present during the meeting when she made these comments to Leung, but curiously, none of them was called to testify. Many exhibits were admitted into evidence at trial which show that Cooper had no hesitancy to raise complaints about various issues in the pharmacy. See examples discussed infra, p.9. Yet there isn't a single email regarding the subject of her having to work through her lunch hour and expressing concern about this.

According to Mr. Leung, whom I found to be utterly credible, Cooper was not a particularly effective pharmacy tech. Although he never had to formally write her up, he did give her verbal warnings regarding a number of shortcomings, including mistakes that she made with respect to compounding of drugs, disappearing from the pharmacy at night, not helping with various tech responsibilities, not paying attention to details, and not being willing to ask questions and then making mistakes. ( See e.g. Def. Ex. L). Although other pharmacy techs made similar mistakes, Cooper's mistakes were more frequent.

David George took over for Edward Leung as Director of Pharmacy at IU Health Arnett in late July 2009. George has a bachelor's degree in pharmacy from Purdue University and a Masters in Business Administration from Indiana University's Kelley School of Business. He has received training in issues concerning wage and hour laws on topics including who is an exempt employee and who is not for purposes of overtime pay provisions.

George first met Cooper when he came on board at IU Arnett in July 2009. At that time, pharmacy techs were supposed to take a "duty free" lunch break. They could eat lunch in the pharmacy, go to the hospital cafeteria, or go to an adjacent break room that the pharmacy shared with the hospital laboratory. Eventually a break room was created within the pharmacy area itself with a television, refrigerator and microwave. The break room was created because a pharmacist is required to be in the pharmacy at all times. This presented problems for the overnight shift because the pharmacy was staffed with just a pharmacist and one tech. And if the pharmacy tech was out making deliveries of drugs in the hospital, the pharmacist was stuck in the pharmacy with nowhere to take a break.

George credibly testified that he never received any complaint from a pharmacy tech about having to work through lunch without getting paid. George does not deny that it may have happened, but he was never aware of it. If a tech worked through lunch, then they would have to have a supervisor denote that on the Kronos system so that the tech would be paid properly. This is because, as discussed above, the Kronos system automatically deducted a ½ hour for lunch and the only way to override that was to manually change it.[2]

Tony Hansen remained Cooper's supervisor after George took over as the director of the pharmacy. Hansen reported directly to George. As the coordinator of pharmacy techs, Hansen was routinely involved in employee evaluations, but he did not have the ...

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